A wide range of legislation applies to the operation of schools and school boards of trustees. It is not intended to offer exhaustive coverage of this range, but to select some key issues, and identify other legislation that principals sometimes have to grapple with.

This Act protects and promotes human rights and fundamental freedoms and applies to Government and its agencies and "any person or body in the performance of any public function power or duty" (i.e. boards of trustees and the teachers they employ).

Of particular relevance are:

the right to "freedom of thought, conscience, religion and belief..." (section 13)

the right to "freedom of expression" (section 14)

the right to "manifest...religion or belief in worship, observance, practice or teaching" (section 15)

the right to "freedom of peaceful assembly" (section 16)

the right to "freedom of association" (section 17)

the right to freedom from discrimination as defined in the Human Rights Act 1993 (section 19)

the right to be secure against "unreasonable search or seizure" (section 21)

the right to the "observance of natural justice" (section 27).

The above rights are not unqualified because section 5 provides that the rights and freedoms summarised above can be constrained by "such reasonable limits as can be demonstrably justified in a free and democratic society".

Examples of issues that can arise are firstly, in relation to section 17, rules relating to membership of school sports teams (in priority to membership of an outside club team); and secondly, in relation to sections 21 and 27, searches of students and their property in the context of disciplinary action.

Principals are sometimes approached by CYPF officials to allow meetings with "at risk" children during school time and on school premises: sometimes this can cause difficulties for principals who wish to maintain constructive relationships with parents and care givers.

In "care and protection" situations, Children Young Persons and their Families Service (CYPFS) officials have wide powers. Section 17 of the Children Young Persons and Their Families Act 1989 uses the expression "...such investigation as may be necessary...”.

The principal's professional duty in such circumstances is to be satisfied that this is a care and protection situation and to get an explanation or a statement to that effect from CYPFS, and to request the CYPFS officials to identify the statutory or regulatory provision under which they consider themselves to be operating.

Neither the Board nor STA should be involved in a specific case because there are privacy issues; and it is an operational matter. However, a principal might like to put a "generalised" paper to the Board, identifying the issue but not the specific case. Board endorsement of the actions taken can generate some policy protection for the principal, but if the school and/or community is small, then the privacy issue re-emerges.

This legislation provides that people are not permanently burdened by past convictions. The effect of the Act is that if seven years passes after a conviction with no further convictions, people are entitled to say they have no criminal record, and no details of any criminal record can be obtained from any source (e.g. police vetting for teacher registration purposes, statements made in job interviews etc). It is an offence for anyone (including an employer) to disregard these provisions. The Act is subject to limitations, including where the nature of the criminal offending (sexual crimes) will always have to be disclosed.

This legislation provides (section 44) that multiple copies of 3% (or 3 pages) of a copyrighted work (most books and articles) may be copied for educational purposes without infringing copyright. Greater rights of copying can be obtained through licensing schemes as detailed in the Act. Some of these schemes are operated by proprietors such as Copyright Licensing Limited (for printed material) or the Australasian Performing Rights Association (APRA) (for music).

For the purposes of research or private study, "fair dealing" does not infringe copyright. Fair dealing is defined in relation to the purpose of the copying, the nature of the work copied, commercial availability of the product, market effects of the copying and the amount copied.

Copying for educational purposes of film and sound recording is permissible if the copying was done by a teacher (or student); or was for the purposes of a lesson on film or sound; or for the learning of a language; or is in relation to correspondence teaching; and if there is no charge.

School Boards of Trustees are now deemed to be a category of Crown Entity. Not all of this Act applies, but of significance are provisions relating to Supply of Information, Financial Reporting and Codes of Conduct.

As Crown Entities, schools are subject to the Ombudsmen Act 1975 and the Official Information Act 1982. Crown Entities are obliged to provide the “responsible Minister” (in this case the Minister of Education) with certain categories of operational and performance information subject to the non-disclosure protections in the Official Information Act.

Schools are required to conform to the banking, transactions, and financial statement requirements common to all Crown Entities. These are not significantly different to what the sector has been required to do, but the Board of Trustees’ accountant needs to bear this in mind. In summary, a school must bank promptly, have proper withdrawal authorisation procedures, and be able to issue prompt and accurate statements of financial position. For more information please see www.treasury.govt.nz.

The State Services Commissioner now has the power to issue Codes of Conduct in the school sector. These can be either for Boards and Board members, or their employees, or both. The State Services Commissioner has indicated that these codes will be “aspirational” (as opposed to directive) and that doing this in the school sector is on the “back burner”. (The Secretary for Education already has the power to issue Codes of Conduct but has never done so. The Schools Trustees Association has issued a model Code of Conduct for Boards to adapt and promulgate, but NZEI regards this code as unenforceable and has complained to the State Services Commission).

Most of the Education Act 1964 has now been superseded by the 1989 Act, but it still has important provisions that carefully enable religious instruction while preserving the secular nature of State education. It also has provisions that deal with health education (including sex education) and school transport.

The Education Act 1989 is the central piece of legislation affecting schools. It provides for a number of key components of the education system.

It establishes a general right to education (with obligations to enrol students and to educate them), including provisions on enrolment schemes and student discipline.

The 1989 Act also provides for the establishment, control and management of schools, including provisions on:

The relationship and respective roles of the principal and board of trustees

The constitution and operation of boards of trustees

School finances

External interventions in schools.

The 1989 Act provides for the constitution and operation of the New Zealand Teachers Council, including provisions on:

The compulsory registration of teachers

Professional discipline

Compulsory police vetting of all school staff.

The 1989 Act also establishes the Education Review Office's wide powers of entry and inspection.

Statements of desirable achievements by the school system, or by an element of the school system; and

Statements of government policy objectives for the school system.

In addition section 60A of the Education Act requires foundation curriculum policy statements concerning teaching, learning and assessment. These statements should underpin and give direction to the way in which curriculum and assessment responsibilities are managed, includingthe national curriculum statements and any locally developed curriculum.

National Curriculum statements are statements of the areas of knowledge and understanding to be covered by students and the skills to be developed by students and the desirable levels of knowledge, understanding and skill to be achieved by students during the years of schooling.

National Administration Guidelines are guidelines relating to school administration and may include (without limitation)

Statements of desirable codes or principles of conduct or administration for specified kinds or descriptions of person or body

Requirements relating to planning and reporting including

Scope and content areas, where appropriate

The timeframe for the annual update of the school charter

Broad requirements relating to schools’ consultation with parents, staff, school proprietors (integrated schools) and school communities, and the broad requirements to ensure that Boards take all reasonable steps to discover and consider the views and concerns of Maori communities living in the geographical area the school serves, in the development of the school charter

Variations from the framework for school planning and reporting for certain schools or classes of schools, based on school performance

Communicate the Government’s policy objectives

Set out transitional provisions for the purposes of national administration guidelines.

In addition Sections 61 to 63B deal with the School Charter. Every Board must prepare a school charter which establishes the mission, aims, objectives, directions and targets of the Board that will give effect to the Government’s national education guidelines and the Board’s policies.

The Charter must include:

The aim of developing policies and practices that reflect New Zealand’s cultural diversity and the unique position of the Maori culture

The aim of ensuring all reasonable steps are taken to provide instruction in tikanga Maori and te reo Maori

A long term strategic planning section

An annually updated section that establishes the Board’s aims, directions, objectives, priorities and targets relating to intended student outcomes, the school’s performance and use of resources and sets the targets for the key activities and achievement of objectives for the year

The Board’s aim to meet the NEGs

The management of the school and Board’s capability, resources, assets and liabilities

All annual or long term plans the Board is required to have or has prepared and a summary of each plan or reference to it.

A copy of the first Charter and every updated charter must be provided to the Secretary of Education (submitted to the Ministry) and the charter must be prepared and updated in accordance with the national administration guidelines.

Once the charter or updated charter has taken effect the Board must make copies available.

Amendments to the Education Act (Part 10A of the Education Act) mean since 2004 all employers must report to the Teachers Council when:

They dismiss a teacher (s139AK(1))

If, when a teacher resigns within 12 months of the employer advising the teacher that they were dissatisfied with, or intended to investigate, any aspect of the conduct of the teacher, or the teacher’s competence [s139AK (2)]

They receive a complaint about the teacher's conduct or competence within 12 months after he or she has left (s139AL)

They have reason to believe that the teacher has engaged in serious misconduct (s139AM)

They are satisfied that despite undertaking competency procedures with the teacher, the teacher has not reached the required level of competence (s139AN).

From 1 September 2004, every teacher must report to the NZ Teachers Council within seven days if he or she is convicted of an offence punishable by imprisonment for three months or more (s139AP(1)). Failure to report a conviction is deemed to be misconduct, and could give rise to disciplinary proceedings.

All mandatory reports must be made in writing and, must also be accompanied by copies of all relevant documentation.

All information sent to the Teachers Council will be copied to the teacher concerned. The Complaints Assessment Committee (CAC) and the Teachers Council cannot take into account any information that has not been sent to the teacher for comment.

NB: If a teacher resigns, or completes a negotiated exit that includes an agreed resignation date, within 12 months of either participating in a competency process or being advised by the employer of an intention to enter a competency process, a mandatory report under section 139AK (2) will follow.

The rules are found in 3 publications:New Zealand Teachers Council (Making Complaints and Reports) Rules 2004New Zealand Teachers Council (Competence) Rules 2004

New Teachers Council (Conduct) Rules 2004.

Reporting ConvictionsSection 139AP of the Education Act requires a teacher to make a report to the NZTC of any applicable convictions. The New Zealand Teachers Council (Making Reports and Complaints) Rules 2004 contain the following requirements:

The report must be made in writing within 7 days of the conviction* or

Orally, within 7 days of the conviction in which case it must be confirmed in writing within 14 days of the conviction.

NB: There is a requirement for convictions to be reported. There is no requirement for arrests or charges to be reported unless they result in a conviction.

The report must include:

The teacher’s name, registration number, date of birth and address

Details of the offence for which the teacher was convicted

The name of the court in which the conviction was entered.

The New Zealand Teachers Council (Conduct) Rules 2004 state that the report will initially be investigated by the Complaints Assessment Committee (CAC). Following investigation of a report of a conviction the CAC may, by agreement with the teacher, annotate the register or the list of authorised persons. If the CAC considers that the conviction may warrant action by the Disciplinary Tribunal it must refer the report to the Disciplinary Tribunal for a hearing.

Applicable convictions

There are a multitude of convictions that could be considered “applicable” and it is not possible to provide a definitive list. Any convictions, however, that can be punishable by a sentence of 3 months or more imprisonment are considered applicable under the legislation regardless of the actual sentence imposed.

Some examples of applicable offences under the Land Transport Act are:

Driving while disqualified or contrary to a limited licence

Reckless or dangerous driving

Failing to stop after an accident where another person is injured or killed

Careless or inconsiderate driving causing an injury to or the death of another person.

Student Number System

Sections 341 – 347 of the Education Act describe requirements and provisions surrounding national student numbers. The purpose is to authorise the use by authorised users of national student numbers for specific purposes in order to facilitate the accurate use and transfer of information relating to individual students.

Schools are deemed to be education providers and authorised users are an education provider, the Ministry of Education, the New Zealand Qualifications Authority, the Tertiary Education Commission, Services (as outlined in section 279) and any other agency or body declared by regulation (see section 347).

The Secretary for Education can assign a national student number to any student who is enrolled with an education provider or who has been granted an exemption.

The Secretary for Education can authorise the use of national student numbers for any one or more of the following:

These guidelines contain flow charts, model letters and forms for notifying the Ministry of Education and sources of support for schools and students. There are also a number of documents on the link such as:

SDS1a Advice of stand-downSDS1b Advice of suspensionSDS2 Advice of outcome of Board meetingInformation for parentsInformation for Board of Trustees

The downloads are Word documents and are also available in Maori, Cook Island Maori, Tongan and Samoan.

Often referred to as the ERA, this is the core piece of legislation governing employment relations in New Zealand, although the State Sector Act 1988 sets out the parameters regarding bargaining in both the compulsory sector and kindergartens.

Features of this legislation include:

The need for parties to act in good faith

Only unions can negotiate collective employment agreements

CEA bargaining can be initiated 60 days before expiry, with unions getting a 20 day head start

Separate Mediation Service and Employment Relations Authority

Employment Relations Authority with some powers formally reserved for the Employment Court

Restrictions on the use of fixed-term employment.

Limited rights to dismiss new employees without explanation within 90 days – but only in small workplaces.

Employment Relations Education Leave (Part 7 Sections 70 – 79)

This part of the Act provides paid leave to certain employees to increase their knowledge about employment relations, to improve relationships, and to promote the Act’s objects, especially the duty of good faith.

1. Interpretation: Unless the context otherwise requires:-

Eligible employee means an employee who is a member of NZEI Te Riu Roa

Who is employed by an employer that is:

Bound by the collective agreement

Bargaining for a collective agreement to replace the collective agreement

Who is bound by the collective agreement or would be bound by the collective agreement being bargained for

The EREL Year means a period of 12 months beginning on 1 April and ending on the close of the last day of March in the following year.

2. NZEI to allocate employment relations education leave in accordance with the provisions of the Act

The maximum number of days of employment relations education leave that NZEI is entitled to allocate in a year in respect of an employer’s eligible employees is the number of days calculated in accordance with 3, unless the employer agrees to the allocation of additional days

The maximum number of days of employment relations education leave that NZEI is entitled to allocate in a year to an eligible employee is 5 days, unless the employee’s employer agrees to the allocation of additional days

Employment relations education leave expires if it is not allocated by the end of the year in respect of which it is calculated under 3, unless the employer agrees that the leave may be carried forward to the next year.

3. Calculation of maximum number of days of employment relations education leave:

The maximum number of days of employment relations education leave that NZEI is entitled to allocate in respect of an employer is based on the number of full-time equivalent eligible employees employed by the employer as at 1 April in that year, and is determined in accordance with the following table:

Full time equivalent eligible employees as at the specified date in a year Maximum number of days of employment relations education leave that union entitled to allocate

Full time equivalent eligibleemployees as at the specified date in a year

__________________________

Maximum number of days of employment relations education leave that union entitled to allocate

__________________________

1-5

3

6-50

5

51-280

1 day for every 8 full-time equivalent eligible employees or part of that number

281 or more

35 days plus 5 days for every 100 full-time equivalent eligible employees or part of that number that exceeds 280

For the purposes of calculating the number of full-time equivalent eligible employees employed by an employer:

an eligible employee who normally works 30 hours or more during a week is to be counted as 1

an eligible employee who normally works less than 30 hours during a week is to be counted as one-half

4. Notification of employment relations education leave calculated:

After calculating the maximum number of days of employment relations education leave NZEI must before 1 May in each year give the employer concerned a notice containing:

the maximum number of days calculated in respect of the employer

the details of the calculation

The employment relations education leave that NZEI is entitled to allocate in respect of an employer in any one year shall be reduced by one twelfth for each complete month after 1 May in which NZEI has not complied with (1).

5. Allocation of employment relations education leave calculated in respect of another Employer:

NZEI may allocate employment relations education leave calculated in respect of an employer to 1 or more eligible employees of another employer only if, and to the extent that, the employers concerned agree, and subject to any terms and conditions agreed with the employers.

An eligible employee proposing to take employment relations education leave must tell her or his employer:

that the employee proposes to take that leave

the dates on which the employee proposes to take that leave

the employment relations education that the employee proposes to undertake during that leave

An eligible employee must not take employment relations education leave unless the employee complies with (1) as soon as possible, but in any event no later than 14 days before the first day of such leave

An employer may refuse to allow an eligible employee to take employment relations education leave if the employer is satisfied, on reasonable grounds, that the employee taking employment relations education leave on the dates notified would unreasonably disrupt the employer’s businessIn (2) day means a day of the week other than a day in the period beginning with 25 December in any year and ending with 5 January in the following year.

An employer must pay to an eligible employee the employee’s ordinary pay (as defined in section 4 of the Holidays Act 1981) for every day or part of a day taken by the employee as employment relations education leave.

However, an employer is not required to comply with subsection (1) in respect of any day for which the eligible employee is paid weekly compensation under the Accident Insurance Act 1998.

This legislation sets up District Medical Officers of Health (DMOH) with widespread powers relating to infectious diseases and epidemics.These powers are “unlocked” when a serious situation develops (such as a bird-flu pandemic) at which time the District Medical Officers of Health can, amongst other powers:

Require people to submit themselves to medical examination

Require premises (including schools) to be disinfected)

Forbid the transportation of goods and persons into or out of districts

Close Churches, theatres, sports grounds and other premises “where people are accustomed to assemble for any purpose (ie schools)

Section 57 establishes that is unlawful for an educational establishment (a school), or the authority responsible for the control of an educational establishment (a board of trustees), or any person concerned in the management of an educational establishment or in teaching at an educational establishment (a principal or teacher), in relation to a student:

to refuse admission

admit on less favourable terms

deny or restrict access to benefits or services

or subject a student to "any other detriment"

by reason of any of the prohibited grounds of discrimination.

An example of a situation where issues have arisen is in relation to the provision of teaching to students with disabilities.

The legislation is extremely relevant to the process of making appointments and sets out prohibited grounds of discrimination and how these apply to the making of appointments. This also applies to terms and conditions of employment, termination of employment, retirements and resignations.

This legislation controls transactions of local authorities (a Board of Trustees is deemed to be a local Authority) in which members have pecuniary interests. The legislation sets financial limits on transactions, requires that interests must be declared, establishes penalties, and requires disqualification from office for breaches.

Section 46 of this Act contains rules relating to the notification of public meetings of local government entities. Boards of Trustees' meetings are deemed to be such meetings but are not bound by these provisions. However, Boards of Trustees are required to take all reasonable steps to ensure that parents and caregivers of students enrolled at schools that the Board administers can readily find out, within a reasonable time before those meetings, where and when meetings of the Board are to be held.Sections 46A, 48, 49, 50 and 51 contain rules relating to the availability of agendas and reports, the exclusion of the public, the presence of news media, the maintenance of order and the right of the public to inspect or receive board minutes.

The Crown Entities Actdeems School Boards of Trustees to be Crown Entities and therefore subject to requests for “official information” which is deemed to be information held by certain categories of public institutions including schools.Schools should not automatically hand over information upon request. The legislation contains significant reasons for withholding information including the protection of individual privacy. The Act also allows information to be handed over in summary form, rather than the actual documents requested. NZEI can provide advice (or supply the names of reputable advisers) with respect to handling requests for official information.

This legislation provides that the Ombudsman shall make determinations about whether a refusal to hand over information requested under the Offical Information Act 1892 is valid. The Office of the Ombudsman can also broker compromises in some situations.

There are certain obligations that employers have when an employee applies for parental leave. Usually it is the principal who is dealing with the application so the following checklist is provided for your use.

Ensure the application for parental leave is in writing and includes a medical certificate verifying pregnancy or a letter verifying the intention to adopt.

Ensure the employee understands that parental leave is essentially leave without pay. If the employee intends taking the full extended leave (one year) their holiday pay will not be affected as they will be absent for a complete year. If, however, the employee intends taking a shorter period they need to understand that their holiday pay will be affected by the period of leave without pay

Section 36 of the Parental Leave and Employment Protection (PLEP) Act requires the employer to notify the employee within 21 days of their application for parental leave of the following:

Whether the employee is entitled to take parental leave (service requirements)

Whether the employee’s position can be kept open.

Section 38 of the PLEP Act requires the employer to provide the employee with written notice within 21 days of the commencement of their parental leave stating the date on which the employee’s leave will end and either, the date on which the employee will be required to return to work if their position is being kept open, or, if the employer cannot keep the position open, the period of 26 weeks during which the employer will give the employee preference over other applicants for any position which is vacant and which is substantially similar to the position held by the employee ay the beginning of their parental leave.

Sections 71 and 71T of the PLEP Act require the employer to comply with the provisions in regard to parental leave payments by:

Notifying the employee that they are entitled to parental payments

Notifying the employee that the parental leave payments begin from the first day of parental leave regardless of the time when the application is made. (This is very important because if a teacher does even one half day relieving in the first 14 weeks of the parental leave period they will be deemed to have returned to work and will forfeit the parental leave payments)

Completing the employer sections of the parental leave payment application.

A school is an agency bound by the 12 Information Privacy Principles in this Act. The principles relate to the collection, retention, correction, use and disclosure of personal information held by the school. Personal information can be information collected about staff (the responsibility of the Board of Trustees as employer) and pupils (the responsibility of the principal as chief executive officer of the Board and professional leader of the school).There is no minimum age at which a person attains rights under the Privacy legislation. Therefore children are rights holders independently of their parents and parents do not have a generic right to access all information about their children. This area is by no means clear but parents or guardians (either separately or together - see Custody and Access Issues below) are entitled to school reports and information about their child's progress.

Section 77 Education Act 1989 requires principals to take "all reasonable steps" to disclose educational information to parents about matters that are (in the principal's opinion) preventing or slowing a student's progress or harming a student's relationships with other students.

Principals will sometimes be approached by parents of other students in situations where statements have been made about their children, or where other children have been involved in an incident concerning their children. The underlying principle is that people have a right to information affecting them, but not to information about others.

Principals may also be approached by officials exercising authority in relation to custody, care and protection, and immigration. In such circumstances, a principal's duty is to take all reasonable steps to check the legal provisions being acted upon (in custody cases this may involve court orders) and the bona fides of the official making the approach.

Houses on school property may require compliance with this legislation which deals with issues such as bonds, rights and obligations of tenants and landlords, tenancy agreements, rent collection, and the functions of the Tenancy Tribunal.

Part VII of this legislation sets up the structure of bargaining in the State Sector. For the purposes of bargaining, the employer is not individual Boards of Trustees, but the State Services Commissioner, who in turn delegates his or her powers to the Secretary for Education.

These provisions make it clear that for other matters including personal grievances, the employer is the Board except that with respect to disputes about the interpretation of application of a collective agreement, where the Secretary for Education may require an employer to act in consultation with the Ministry of Education.

Children are sometimes the subject of custody and access disputes amongst parents, care givers and extended family. Sometimes police or CYPFS officials may be taking steps in relation to a child's welfare. Custody and access in family disputes are ultimately the subject of Court orders.

Rights of guardianship are contained in the Guardianship Act 1968 and are separate from rights of custody. Both estranged parents will usually have decision making rights and rights to information such as report cards.

If problems arise, the principal's professional duty in relation to outside entities is to be satisfied about the legal parameters of the situation such as:

Whether there is there a court order, and can it be produced or verified

Whether the child is represented by a court appointed counsel for the child (such persons are available to be consulted and advice from such counsel should prevail over any other advice that is being tendered)

Whether external officials have complied with requests to identify themselves, identify the statutory or regulatory provision under which they consider themselves to be operating, and produced court orders relevant to the situation.

More specific advice about powers of CYPFS officials under the Children Young Persons and their Families Act 1989 is contained here.

***Principals and boards cannot expect to maintain extensive libraries of legislation for the occasions when a legal issue arises. Access to this information can be gained at Acts, bills and regulations.

The New Zealand legislation (or statutes) referred to in this chapter are: